Charter Terms and Conditions

 

1.  Non-Exclusive Appointment.

1.1    NY 2109 North, LLC D/B/A Cable Squad USA (“Cable Squad”) and Distributor entered into a Distribution Agreement and Distributor agrees to be bound by these additional Terms (collectively, the “Agreement”).

1.2    Cable Squad hereby appoints Distributor, and Distributor hereby accepts the appointment, to act as a non-exclusive distributor of the Charter Services to residential individuals in accordance with the Agreement. Individuals who purchase or subscribe to Charter Services through Distributor shall be referred to as “Customers”.  Cable Squad may, in its sole discretion sell the Charter Services to any other person, including distributors, retailers, and customers. By accepting this appointment, Distributor agrees to conform to all quality standards, marketing rules and operational guidelines established from time to time by Cable Squad and/or Charter (collectively “Guidelines”). These Guidelines are subject to change by Cable Squad and/or Charter in their sole discretion without notice to Distributor.

1.3    Distributor shall only be permitted to market the Charter Services via the sales channels approved by Cable Squad (“Authorized Sales Channels”) or as modified by Cable Squad in writing from time to time (e-mail is sufficient).  In addition, each specific campaign must be further approved by Cable Squad in writing. 

1.4    Distributor understands and agrees that Cable Squad will set, and may change from time to time, in its sole discretion, the terms, conditions, prices and pricing parameters for the Charter Services and that Distributor shall not imply or represent anything to the contrary to any person or entity. 

1.5    Unless otherwise expressly set forth herein or as agreed to in writing by Cable Squad, Distributor is solely responsible for all risks, liabilities, costs and expenses incurred in connection with its activities and those of its personnel, representatives, and other agents in the performance of its obligations under this Agreement.

 

2.  Obligations.

2.1    Distributor Obligations. Distributor shall:

(a)   market, advertise, promote, and sell the Charter Services to Customers in a manner that reflects favorably at all times on the Charter Services and the good name, goodwill and reputation of Cable Squad and Charter and consistent with good business practice, in each case using its best efforts to maximize the sales volume of the Charter Services;

(b)  observe all directions, instructions, policies and Guidelines provided by Cable Squad and/or Charter in relation to the sale, marketing, advertisement, and promotion of the Charter Services, as they currently exist or as they may hereafter be modified from time to time and not use any promotional and marketing materials, without the prior written consent of Cable Squad;

(c)   not engage in any activity or business transaction which could be considered unethical or anti-competitive, in accordance with applicable laws or prevailing business standards; 

(d) not make any materially misleading or untrue statements, including any deceptive or disparaging practices in advertising or otherwise concerning Cable Squad, Charter or the Charter Services;

(e) not condition, tie or otherwise bundle any purchase of Charter Services with purchase of other services or products other than as specifically agreed to in writing by Cable Squad and Cable Squad shall have the absolute right to approve or disapprove the content of any bundle of services, rebates, or products that Distributor intends to offer in conjunction with the Charter Services;

         (f)   promptly notify Cable Squad of any complaint or adverse claim about any Charter Service or its use;

(g)  not engage in any business, directly or indirectly, which offers, provides, markets or procures products or services which competes with the business of Cable Squad without Cable Squad’s prior written consent during the Term of this Agreement and for a period of one (1) year after termination of this Agreement.  This Section 2.1(g) shall also apply to Dealer’s affiliated entities and Dealer and its affiliated entities’ owners, shareholders, directors, officers and senior employees;

(h)  submit to Cable Squad complete and accurate monthly reports with information regarding marketing and sales of the Charter Services in a format acceptable to Cable Squad, and maintain books, records, and accounts of all transactions and permit full examination thereof by Cable Squad in accordance with Section 7;

(i)   provide customer support in connection with all activities performed by it hereunder in accordance with its normal course of business and industry practices.  Such customer support provided by Distributor hereunder, when taken as a whole or in any particular respect, shall (1) not discriminate against Customers, and (2) be at levels or of a quality equivalent to reasonable industry standards.

2.2    Cable Squad’s Obligations. Cable Squad shall:

(a)  provide any information and support that may be reasonably requested by Distributor regarding the marketing, advertising, promotion, and sale of the Charter Services; and

(b)  approve or reject, in its discretion, any promotional information or material submitted by Distributor for Cable Squad’s approval.

 

3. Orders Procedure.

3.1    Orders. Distributor shall utilize the intake and referral process/”sales flow” or such other process as approved by Cable Squad from time to time (“Order Intake and Referral Process”). 

3.2    Cable Squad’s Right to Accept or Reject Orders. Cable Squad may, in its sole discretion, accept or reject any order for a potential customer submitted by or through Distributor (“Order”). No Order is binding unless accepted by Cable Squad and such Charter Service is installed.  Cable Squad reserves the right to reasonably allocate its installation service workforce in its sole discretion.

3.3    Availability/Changes in Charter Services. Cable Squad may, in its sole discretion, add or make changes to the Charter Services upon notice to Distributor.

3.4    Subscription Relationship.  At all times the subscription relationship for Charter Services shall be between Customer and Charter.  Distributor acknowledges that Charter shall have the right, in its sole discretion, to determine whether to serve or discontinue Charter Services to any Customer.

 

4.  Representations and Warranties.

4.1    Distributor represents and warrants that: (i) it has all necessary rights and interest to market and sell Charter Services on or through the Authorized Sales Channels and any other Distributor property or tools used for marketing activities or otherwise hereunder, including any portions thereof, and that such rights and interest are free of any restrictions, settlements, judgments or adverse claims; (ii) it is duly organized and validly existing; (iii) the execution, delivery and/or performance of this Agreement shall not conflict with or result in any breach of any agreement, contract or legally binding commitment or arrangement to which Distributor is a party; and (iv) it is not subject to any limitation or restriction (including, without limitation, non-competition and confidentiality arrangements) that would prohibit, restrict or impede the performance of Distributor’s obligations under this Agreement.

4.2   Distributor further represents and warrants that: (i) Distributor’s (and all personnel’s) performance in connection with this Agreement will be completed in a professional and workmanlike manner in accordance with the highest industry standards; (ii) Distributor’s (and all personnel’s) performance in connection with this Agreement complies with all applicable laws, including, without limitation, Federal and State “Do Not Call” laws, the Telemarketing and Consumer Fraud and Abuse Telemarketing Act, the Federal Trade Commission’s Telemarketing Sales Rule, the Cable TV Privacy Act of 1984, laws governing emails and other digital communications, data privacy laws and laws governing advertising and solicitations; (iii) Distributor is PCI compliant and has developed, implemented and shall maintain a comprehensive information security program that includes administrative, technical, and physical safeguards and controls (collectively, “Security”) (iv) Distributor will not use any property that shall contain or otherwise be used to communicate any unlawful, threatening, abusive, false, libelous, defamatory, obscene, pornographic, profane, or otherwise infringing or objectionable content or material of any kind; (v) Distributor shall include only materials that Distributor is authorized to use; (vi) Distributor shall not use property that conflict with or infringe upon or violate any intellectual property rights or rights of publicity or privacy or other rights of, and shall not cause injury to, any person; (vii) Distributor shall not include, or use materials to perpetrate, any false, misleading or deceptive advertising; and (viii) all obligations owed to third parties with respect to the activities contemplated to be undertaken by Distributor under this Agreement including, but not limited to, all third-party licensing fees, are or shall be fully paid up by Distributor so that Cable Squad shall have no obligations with respect thereto.

4.3  Without limitation of anything else set forth herein, all rights, title and interest in and to any end user data of Customers collected by Distributor in connection with this Agreement (the “End User Data”), shall be owned by Charter. Additionally, without limitation of any other terms, conditions and obligations set forth herein (including, without limitation, with respect to Personal Information, as defined below), but subject to the proviso set forth in the immediately preceding sentence, Distributor: (i) shall not collect any End User Data other than in accordance with Charter’s privacy policy(ies) (as set forth at https://www.charter.com/browse/content/residentprivacy) and except that which is actively and knowingly provided by an end user; (ii) shall only use such information as necessary for Distributor’s provision of services to or for Cable Squad under this Agreement; (iii) shall not share or disclose any End User Data for any purpose other than as necessary for Distributor’s provision of the services as expressly permitted by this Agreement, and in such cases, only with written notice to Cable Squad, and subject to a confidentiality and restricted use agreement at least as protective of End User Data as this Agreement; and (iv) shall not provide Personal Information (as defined below) to any third party in a manner which identifies such end users as Customers or users of, or candidates of, Charter Services other than as necessary for Distributor’s provision of the services as expressly permitted by this Agreement, and in such cases, only with written notice to Cable Squad, and subject to a confidentiality and restricted use agreement at least as protective of End User Data as this Agreement. Subject to the proviso set forth in the first sentence of this Section 4.3, if Distributor should receive any legal request or process in any form seeking disclosure of, or if Distributor should be advised by counsel of any obligation to disclose End User Data, Distributor shall provide Cable Squad with prompt prior written notice of such request or advice so that Cable Squad may seek a protective order or pursue other appropriate remedies to protect the confidentiality of such information. If such protective order or other remedy is not obtained, Distributor agrees to furnish only that portion of the information which is legally required to be furnished and, in consultation with Cable Squad, to use all reasonable efforts to assure that the information is maintained in confidence by the party to whom it is furnished. In addition to and without limitation of any other obligations set forth herein, but subject to the proviso set forth in the first sentence of this Section 4.3, Distributor shall treat all End User Data that constitutes or includes Personal Information (hereinafter defined) in accordance with the terms, conditions and obligations of this Agreement with respect to Personal Information. Personal Information includes any information or data that identifies an individual or from which an individual may be identified, including, without limitation, an individual’s name, address, telephone number, social security number, driver’s license number, identification card or passport numbers, personal identification codes or numbers, electronic mail names or addresses, account numbers, and all “personal information,” “nonpublic personal information,” and other similar information, however described, as defined under applicable law.  For the avoidance of doubt, but subject to the proviso set forth in the first sentence of this Section 4.3 and the terms of Exhibit B, all End User Data and Personal Information, shall be considered and treated as Confidential Information hereunder.

 

5.  Intellectual Property.

5.1  “Intellectual Property” includes, but is not limited to trademark(s), trade names, service marks, designs, logos, symbols, advertising materials and any other materials or properties owned or licensed by Charter and/or Cable Squad that are provided to Distributor for use in connection with this Agreement, including without limitation, any artwork and offers associated with its products and services.  Notwithstanding anything in this Agreement to the contrary and in addition to and without limiting the terms and conditions of this Section 5, generally, Distributor’s use of the Intellectual Property at all times shall comply with the Guidelines provided by Cable Squad and/or Charter.

5.2    Distributor shall submit each proposed use of the Intellectual Property to Cable Squad for its approval. If Cable Squad does not approve the proposed use of the Intellectual Property in writing within ten (10) business days, such proposed use shall be deemed disapproved. All approvals granted in accordance herewith shall (i) be valid solely during the term specified by Cable Squad (or if no such term is specified, during the Term of this Agreement), and (ii) be limited to the specific purpose for which Distributor’s approval was sought and received (to the extent reasonably required in connection with Distributor’s performance in connection with this Agreement). Without limiting the foregoing, Distributor shall use appropriate trademark and other notices for the Intellectual Property on the materials prepared by or on behalf of Distributor, as directed in writing by Cable Squad and/or Charter.

5.3    All rights not expressly granted by Cable Squad and/or Charter are reserved. No implied licenses are granted by the terms of this Agreement and no license rights with respect to any Intellectual Property of Charter and/or Cable Squad shall be created by implication or estoppel.

6.  Commission.

6.1    Cable Squad shall pay to Distributor the Commission(s) described in EXHIBIT A for those Charter Service activations (each, an “Activation”) that qualify for a Commission, if undisputed and less any applicable Chargebacks (as defined below). The Commission(s) listed in EXHIBIT A is subject to change upon five (5) days notice.  Distributor acknowledges that Commissions shall be the sole, full and total compensation due to Distributor under this Agreement. Cable Squad shall not have any obligation to pay to Distributor any Commission disputed in good faith by Cable Squad until the dispute is resolved to Cable Squad’s reasonable satisfaction.

6.2    Cable Squad may deduct, offset, suspend, withhold and/or otherwise retain from Commissions otherwise owed to Distributor, or directly charge to Distributor (in which case Distributor shall promptly pay to Cable Squad), certain amounts as set forth in this Agreement, including EXHIBIT A (collectively, “Chargebacks”).

6.3    Distributor agrees that in no event shall Cable Squad have any liability under this Agreement for any Commission not received by Distributor as a result of an error in any way attributable to: (i) any bank or financial institution; (ii) Distributor; (iii) Charter; or (iv) any other person or entity outside of Cable Squad’s direct control.

6.4    In addition to any other rights and remedies available, Cable Squad shall not be required to pay any Commissions to Distributor when Distributor is in breach or default of this Agreement, and Cable Squad shall have no liability to Distributor as a result of such suspension of payment. Without limiting the foregoing, if Distributor breaches this Agreement, Cable Squad may withhold payment of Commissions otherwise due to Distributor until an audit is completed.

 

7.  Audit and Inspection Rights. During the Term of this Agreement and for a period of three (3) years following the termination or early termination of this Agreement, on request and during regular business hours, Cable Squad or its representatives may at its own expense reasonably inspect Distributor’s facility and audit Distributor’s books, records, and other documents as necessary to verify compliance with this Agreement.

 

8.  Term; Termination.

8.1    Term. This Agreement shall be effective as of the Effective Date and unless sooner terminated in accordance with its terms, shall continue for a period of one (1) year (“Initial Term”) and, thereafter, shall be automatically renewed for successive one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless terminated by either party upon (i) thirty (30) calendar days’ notice to the other party prior to the expiration of the then current Initial Term or Renewal Term, as applicable, or (ii) in accordance with Sections 8.2 below.

8.2    Termination Rights. Notwithstanding anything to the contrary in this Agreement, Cable Squad may terminate this Agreement and the appointment of Distributor under Section 1, for any or no reason, at any time upon written notice to Distributor, and said termination shall become effective thirty (30) days following the delivery of such notice, except where a shorter period is provided for in this Agreement. In addition to any remedies that may be provided in this Agreement, Cable Squad may immediately terminate this Agreement, upon notice to Distributor if Distributor:

(a)  fails to pay any amount when due under this Agreement;

(b)  is in breach of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured within ten (10) days following Distributor’s receipt of notice of such breach;

(c)  becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;

(d) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;

(e) seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts;

(f)  makes or seeks to make a general assignment for the benefit of its creditors;

(g) applies for or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or

(h) receives an order by any court or governmental authority with proper jurisdiction which deems the activities of either party to be in conflict with an applicable law, or if Cable Squad and/or Charter loses any authorization necessary to provide the Charter Services.

8.3    Effect of Expiration or Termination. Upon the expiration or earlier termination of this Agreement:

(a)  All rights granted herein shall immediately revert to Cable Squad and no residual rights shall remain with Distributor and Distributor shall cease all use of the intellectual property rights pursuant to this Agreement, including, without limitation with respect to Distributor’s use of Intellectual Property, and not use any marks confusingly similar thereto;

(b)  Distributor shall cease to represent itself as Cable Squad’s authorized distributor regarding the Charter Services, and shall otherwise desist from all conduct or representations that might lead the public to believe that Distributor is authorized by Cable Squad to sell the Charter Services; and

(c)  Distributor shall promptly return or destroy (pursuant to Cable Squad’s instructions) all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on Confidential Information or otherwise provided pursuant to this Agreement.

 

9.  Confidential Information/Privacy.

9.1    All non-public, confidential or proprietary information of Cable Squad and/or Charter, including, but not limited to, financial plans, developments, strategies, market plans, business plans, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates (“Confidential Information”), disclosed by Cable Squad to Distributor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Cable Squad in writing. Upon Cable Squad’s request, Distributor shall promptly return or destroy all documents and other materials received from Cable Squad. Cable Squad shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is:

(a)  in the public domain other than as a result of a disclosure by Distributor;

(b)  known to Distributor prior to disclosure; or

(c)  rightfully obtained by Distributor on a non-confidential basis from a third party.

9.2    Distributor shall comply with the Security and any Security Requirements in Exhibit B.

9.3    Without limiting the foregoing, Distributor shall (a) include on Distributor Web Sites that display or otherwise reference Charter Services and/or Intellectual Property in connection with this Agreement, a right to “opt out” of any disclosure to third parties of any personally identifiable information collected (except as necessary for the use of the Distributor Web Sites); (b) honor any “opt out” request of any Customer in accordance with the foregoing; and (c) refrain from providing or disclosing any Customer’s Personal Information collected hereunder, to any third party in a manner that identifies any Customers of any Charter Service.

For the avoidance of doubt, this Section 9 shall not in any way limit Distributor’s additional obligations with respect to Personal Information, which obligations shall remain in effect and continue indefinitely following the termination or expiration of this Agreement, notwithstanding anything herein to the contrary.

 

10. Except as explicitly authorized in this Agreement or in a separate written agreement with Cable Squad, Distributor shall not modify, alter, reverse engineer, or otherwise change the Charter Services it sells to Customers.

 

11. NEITHER CABLE SQUAD NOR ANY PERSON ON CABLE SQUAD’S BEHALF HAS MADE OR MAKES FOR DISTRIBUTOR’S BENEFIT ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE; (iii) TITLE; OR (iv) NON-INFRINGEMENT; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. DISTRIBUTOR ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY CABLE SQUAD, OR ANY OTHER PERSON ON CABLE SQUAD’S BEHALF.

 

12.  Compliance With Laws. Distributor shall at all times comply with all federal, state and local laws, ordinances, regulations and orders that are applicable to the operation of its business, and this Agreement and its performance hereunder. Without limiting the generality of the foregoing, Distributor shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement.

 

13.  Indemnification.  Subject to the terms and conditions of this Agreement, Distributor shall indemnify, hold harmless, and defend Cable Squad and its officers, directors, partners, members, shareholders, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to any claim of a third party arising out of or occurring in connection with:

(a)  Distributor’s acts or omissions as Distributor of the Charter Services, including breach of this Agreement;

(b)  Distributor’s advertising or representations that warrant performance of Charter Services beyond that provided by Cable Squad’s written warranty or based upon Distributor’s business or trade practices;

(c)  any failure by Distributor or its personnel to comply with any applicable laws;

(d)  allegations that Distributor breached its agreement with a third party as a result of or in connection with entering into, performing under or terminating this Agreement; or

(e) Distributor’s failure to comply with the requirements set forth in Exhibit B, including, but not limited to a Security Requirements/Cardholder Data Security Breach.

 

14.  LIMITATION OF LIABILITY. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT:

(a)  IS CABLE SQUAD OR ANY CABLE SQUAD REPRESENTATIVE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF:

(i)   WHETHER THE DAMAGES WERE FORESEEABLE;

(ii)  WHETHER OR NOT CABLE SQUAD WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND

(iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) ON WHICH THE CLAIM IS BASED.

(b)  SHALL CABLE SQUAD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO CABLE SQUAD UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $1,000, WHICHEVER IS LESS.

 

THE FOREGOING LIMITATIONS APPLY EVEN IF THE DISTRIBUTOR’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

 

15.  Insurance. For the Term of this Agreement and a period of one (1) year thereafter, Distributor shall, at its own expense, maintain and carry insurance in full force and effect that includes, but is not limited to, commercial general liability (including product liability) with limits no less than $1,000,000 in the aggregate with financially sound and reputable insurers. Upon Cable Squad’s request, Distributor shall provide Cable Squad with a certificate of insurance and policy endorsements for all insurance coverage required, and shall not do anything to invalidate such insurance. The certificate of insurance shall name Cable Squad as an additional insured. Distributor shall provide Cable Squad with thirty (30) days’ advance written notice in the event of a cancellation or material change in Distributor’s insurance policy. Except where prohibited by law, Distributor shall require its insurer to waive all rights of subrogation against Cable Squad’s insurers, Cable Squad and the other Indemnified Parties.

 

16.  Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.

 

17.  Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties and any other provision that, in order to give property effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.

 

18.  Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

19.  Amendments. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.

 

20.  Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

 

21.  Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Notwithstanding the previous sentence, the parties intend that Distributor’s rights under Section 11 are Distributor’s exclusive remedies for the events specified therein.

 

22.  Assignment. Distributor shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Cable Squad. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Distributor of any of its obligations hereunder. Cable Squad may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Distributor’s prior written consent.

 

23.  Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.

 

24.  No Third-Party Beneficiaries. Subject to the next paragraph, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person (including any Customer) any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

 

25.  Choice of Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the principles of conflict of law.  The parties hereto consent that any legal or equity proceeding brought in connection with, or arising out of, any matter relating to this Agreement, and the transaction to which it relates, shall be instituted only in a federal or state court of competent jurisdiction within the State of New York, County of Kings.  Distributor hereby irrevocably consents to, and submits to the jurisdiction of, the courts of the State of New York, County of Kings, and waives any objection it or he may have to either the jurisdiction or venue of such courts.  Distributor hereby further consents and agrees, and without limiting any other method of obtaining jurisdiction, that in any action or proceeding commenced under the terms of this Agreement, service of a summons and complaint or any other process in any action or proceeding, shall be sufficient if made on the Distributor by registered or certified mail, return receipt requested, at the last known address of the Distributor whether such address shall be within or without the jurisdiction of the court where such action or proceeding is pending, and the Distributor hereby unconditionally and irrevocably waives personal service of such process.

 

26.  Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

 

27.  Force Majeure. No Party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party under this Agreement), when and to the extent the failure or delay is caused by or results from acts beyond the impacted party’s (”Impacted Party”) control (which events may include natural disasters, embargoes, explosions, riots, wars or acts of invasion or terrorism, pandemics, requirements of law, national or regional emergency) (each, a “Force Majeure Event”). A party shall give the other party prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. An affected party shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized, and resume full performance under this Agreement.

 

28.  No Franchise or Business Opportunity Agreement. The parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between Cable Squad and Distributor. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Distributor has the sole discretion to determine Distributor’s methods of operation, Distributor’s accounting practices, the types and amounts of insurance Distributor carries, Distributor’s personnel practices, Distributor’s advertising and promotion, its Customers, and Distributor’s service areas and methods. The relationship created hereby between the parties is solely that of Cable Squad and distributor. If any provision of this Agreement is deemed to create a franchise relationship between the parties, then Cable Squad may immediately terminate this Agreement.

 

29. The Distributor agrees that during the term of this Agreement and after termination the Distributor and its shareholders, officers and directors will not disparage Cable Squad and/or Charter or any of their affiliates, officers, directors or employees.  For purposes of this section, “disparage” shall mean any negative statement, whether written or oral, including communications made or transmitted on the internet or social media sites about Cable Squad and/or Charter.  The parties agree and acknowledge that this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in Cable Squad refusing to enter into this Agreement. For the avoidance of doubt, no cure period shall apply.   

 

 

 

 

 

 

 

EXHIBIT A

 

COMMISSION RATES AND QUALIFICATIONS

 

 

Commission Rates:

Commission Rates shall be provided to Distributor via email or otherwise by Cable Squad and are subject to change upon five (5) days notice.

 

Commission Qualifications:

 

The Activation must result from a customer referred to Cable Squad by Distributor in accordance with the Order Intake and Referral Process (as confirmed by Cable Squad based on electronic or other reasonably verifiable evidence designated by Cable Squad), to confirm that the particular Order was submitted via Distributor through the Authorized Sales Channel and otherwise pursuant to this Agreement; (ii) the Activation must not result from an Order that was canceled and subsequently re-entered by another Cable Squad distributor, Charter retailer / Distributor after a period of time greater than twenty-four (24) hours from the date / time such Order was canceled (based on the “check-in” date / time identified in the appropriate / applicable Charter billing system); (iii) except with respect to a customer pre-ordering a Charter Service for his / her new residence, such customer must not already be an existing Charter or Charter Affiliate Subscriber for such Charter Service or have been such a customer within the sixty (60) day period immediately preceding Activation of such Charter Service; (iv) such customer must have been accepted by Charter in its sole discretion; and (v) such Charter Service must be actually installed and provisioned (i.e., “activated”) so that the customer becomes a Charter Subscriber for a Charter Service (i.e., not necessarily the Charter Service(s) originally ordered by the customer), within thirty (30) days following the date such customer is referred to Charter (which date shall be the date the Order is provided to Charter in accordance with the procedures set forth in this Agreement, e.g., the date the Order is provided to Cable Squad at a Distributor store) (each, an “Activated Customer”). With respect to Mobile Services, “Activation” shall mean: (i) a subscriber that activates a new mobile line with an accompanying qualifying Mobile Service plan (e.g., a switch to a different Mobile Service plan for an existing mobile line with Charter does not qualify) as a result of Distributor’s submission of an Order in accordance with this Agreement; (ii) the activated subscriber meets Charter’s eligibility criteria for Mobile Services and was accepted by Charter for the Mobile Service plan (acceptance is at Charter’s sole discretion); (iii) the newly activated mobile line and accompanying qualifying Mobile Service plan was activated within sixty (60) days following the date such subscriber was referred to Charter (which date shall be the date the Order is provided to and accepted by Charter, in accordance with the procedures set forth in this Agreement); and (iv) the subscriber remains a subscriber in good standing the Chargeback period following activation.

 

 

EXHIBIT B

 

CARDHOLDER DATA OBLIGATIONS

 

 

If and to the extent ever applicable in connection with Distributor’s performance under this Agreement, Distributor shall comply with the following:

 

  1. In connection with its performance hereunder: (i) if and to the extent that any Cardholder Data (as defined below) of Charter’s subscribers or prospective subscribers is shared with, or stored, processed or transmitted by Distributor in connection with Distributor’s performance of its obligations under the Agreement, Distributor acknowledges that Distributor is responsible for the privacy and security of any and all Cardholder Data that Distributor, at any time, accesses, stores, processes, transmits, or otherwise possesses; and (ii) Distributor shall comply with all: (A) applicable laws, including, without limitation, 201 CMR 17.00, to the extent that Distributor collects, receives, stores, maintains, processes or otherwise has access to any Subscriber information or Cardholder Data, and (B) rules, regulations, standards, and security requirements of the PCI Security Standards Council and any credit or debit card provider, gift card provider, or other stored value and loyalty program card provider, including, but not limited to, American Express, Visa, U.S.A., Inc., MasterCard International, Inc., Discover Financial Services, LLC, and JCB International (the “Payment Brands”), including, without limitation, the current version of the Payment Card Industry Data Security Standard, (“PCI-DSS”), in each case, as such may be amended, modified, supplemented, or replaced from time to time (“Security Requirements”). For the purposes of this Agreement, “Cardholder Data” has the meaning provided in the PCI-DSS.

 

  1. In the event of any Security Requirements/Cardholder Data Security Breach, or at any time if requested by Charter, Distributor shall permit Charter, any Affiliate of Charter, a Payment Card Industry (“PCI”) representative, and/or a PCI approved third party (individually or collectively, the “PCI Auditor”), to conduct a thorough review of Distributor’s books, records, files, computer processors, equipment, systems, physical and electronic log files, and facilities relating to the performance under this Agreement, to investigate or remediate a Security Requirements/Cardholder Data Security Breach or validate and confirm Distributor’s compliance with the Security Requirements (the “Audit”). Distributor shall provide the PCI Auditor with full cooperation and access to enable such Audit.